State v. Alston , 17 N.C. App. 712 ( 1973 )

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195 S.E.2d 314 (1973) 17 N.C. App. 712
STATE of North Carolina
v.
Emmett ALSTON.
No. 7314SC203.
Court of Appeals of North Carolina.
March 28, 1973.
*315 Atty. Gen., Robert Morgan, by Asst. Atty. Gen., Edward L. Eatman, Jr., for the State.

Loflin, Anderson, Loflin & Goldsmith, by Thomas F. Loflin, III, Durham, for defendant appellant.

CAMPBELL, Judge.

Defendant has asserted in several assignments of error that the trial court improperly conducted the trial. We think at least two of these assignments are well taken, and there must be a new trial. We will refrain from discussing the other assignments of error as they may not arise on a new trial.

During the course of the trial, counsel for the defendant was attempting to question one of the two holdup men who testified against the defendant. The line of questioning was aimed at testing the credibility of the witness with particular reference to whether he was testifying against the defendant because of the possibility that he would be able to expect leniency in his own sentence when he was faced with a potential maximum sentence of 30 years. The trial judge intervened and ruled that this line of cross-examination could not proceed. The trial judge was acting on the premise that it was improper to bring out before the jury the possible sentence as that was a matter for the court and not for the jury. In the instant case the defendant's counsel had the right to probe and test the credibility of the witness, and this right took precedence over the prohibition the judge was seeking to maintain. Much latitude is allowed in showing the bias, hostility or other interest of a witness with respect to the case or other facts tending to prove that the testimony of the witness is unworthy of credit. State v. Roberson, 215 N.C. 784, 3 S.E.2d 277 (1939). It was error to restrict the cross-examination.

The trial judge submitted case No. 72CR892, which was the charge of armed robbery, on the basis of the defendant being an aider and abettor. There was no evidence in the record to support such a finding. There is no evidence which would support a finding that at the time the robbery was committed, defendant was situated where he could give Jackson or Williams any advice, aid, encouragement, or comfort, if needed, while they were perpetrating the robbery. Thus, defendant was neither actually nor constructively present at the time, and he could be guilty at most of being an accessory before the fact. An accessory before the fact is one who meets every requirement of a principal in the second degree, except that of presence at the time. State v. Wiggins, 16 N.C.App. 527, 192 S.E.2d 680 (1972). On this record case No. 72CR892 (armed robbery) should have been submitted to the jury on whether or not the defendant was an accessory before the fact which was an *316 included offense within the bill of indictment.

New trial in both cases.

BRITT and GRAHAM, JJ., concur.